The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that their claim is not acceptable. A hearing was held on February 5, 2024 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

The claim is not acceptable.

Background

The worker filed a Worker Incident Report with the WCB on November 23, 2022 reporting an injury to their left upper leg that occurred at work on January 1, 1977. The worker described scratching their leg as they walked past a piece of sheet metal with a jagged edge. The worker reported they later noticed the metal cut their leg open and they now have a 5-inch scar.

On December 5, 2022, the worker's representative contacted the WCB to discuss the worker's claim. The representative advised the WCB that they contacted the hospital where the worker attended after the accident, and the hospital advised that records from 1977 have been destroyed. The representative stated the individual who took the worker to the hospital has passed away. The WCB advised the representative that further investigation was required. Later the same day, the representative provided a photograph of the scarring on the worker's leg to the WCB. The WCB contacted the hospital on December 7, 2022 and confirmed the hospital did not have records dating back to 1977. On the same date, the WCB adjudicator spoke with the WCB Assessment Department to confirm the employer of record for the worker's claim.  

The WCB advised the worker on December 9, 2022 that the claim was not acceptable, noting that due to the lapse in time since 1977, the employer had no record of the incident, and no medical records were available to confirm treatment.

On December 19, 2022, the worker's representative requested Review Office reconsider the WCB's decision, submitting that the worker was youthful at the time of the incident and was not aware of the requirement to report the incident, which the representative alleged the employer suppressed. On January 3, 2023, the worker's representative provided a letter from the worker's sister indicating they were aware of the worker's injury and recalled helping the worker with some personal care activities after the injury occurred. On January 23, 2023, Review Office determined the worker's claim was not acceptable as there was no evidence from the employer or from any treating healthcare providers to support a finding that the worker sustained an injury as a result of their employment and noting the length of time since the incident made it difficult to establish an incident occurred.

The worker's representative filed an appeal with the Appeal Commission on August 29, 2023 and a hearing was arranged.

Reasons

Applicable Legislation

The provisions of The Workers Compensation Act (the “Act”) in effect as of the date of the reported accident are applicable.

The Act defines an accident, in s 2(1)(a) as “…a chance event occasioned by a physical or natural cause…and as a result of which a workman is disabled.”

The Act sets out in s 16(1) that a worker entitled to compensation shall file an application for compensation with the WCB in the form required by the WCB, and s 16(2) requires that unless such application is filed within one year after the day of injury, no compensation is payable, subject to s 92. Section 92 permits the expansion or enlargement of time for application where an injustice would result, in the opinion of the WCB, if not provided.

Worker’s Position

The worker appeared in the hearing and made a submission on their own behalf. The worker also provided testimony through information presented and answers to questions posed by the members of the appeal panel. The worker was accompanied by their sister, who offered testimony and answered questions posed by the appeal panel.

The worker’s position is that they should be entitled to compensation in relation to the scarring arising from the cut to their left upper thigh that was caused by an accident at work in 1977. As the injury occurred at work, the worker submits that the WCB should accept the claim.

The worker recalled that they were 16 years old when the accident occurred at work as they walked past and rubbed up against a cart of sheet metal. The worker testified that:

I was walking by and I accidentally rubbed up against it, and in the corner of it is sharp like a knife, and it split me, and it cut my pants open. I thought it was just a scratch. So, I went into the bathroom and let my pants down and was like, 'Oh, my God.' I went straight into the foreman's office and the foreman…he had taken me to the -- to the …Hospital. I got sewed up right away. I went right back to work, and I -- and I still remember sitting on -- on the work bench because I got back just before lunch and -- and the owner…came up and asked me how what happened. And I explained how it happened.

The worker further testified that because of this injury, they have a disfiguring scar on their left upper thigh, and that they are often asked about that scar when they are suntanning. The worker confirmed the wound was treated at hospital with stitches and that 7 – 10 days later, they went to their family doctor to have the stitches removed.

The worker explained that they did not know they should report an injury at work to the WCB and did not recall having any injury report forms at work. The worker stated that they only began working in this job in late August or September and the injury occurred a few months later. The worker confirmed that they did not miss any time from work other than to go to the hospital and that they returned to work the same day. The worker was not able to confirm the date the accident occurred.

The worker’s sister confirmed the evidence previously provided to the WCB, that she recalled helping the worker with bathing after the injury until the wound healed. At the time, they both lived in the same household with their parents, and the sister, who is several years younger than the worker, was attending school. The sister could not recall what time of year the incident happened.

Employer’s Position

The employer did not participate in the appeal.

Analysis

This appeal arises from a claim made on November 23, 2022 in relation to an injury that occurred at some point around early 1977. For the worker’s appeal to succeed, the panel would have to determine that the worker was injured as a result of an accident arising out of and in the course of their employment. As detailed in the reasons that follow, the panel was not able to make such a finding and therefore the worker’s appeal is denied.

The panel considered that the only evidence of an accident causing injury to the worker is from the worker’s statements to the WCB and their testimony in the hearing. There is no corroborating evidence from the employer or any medical record to support the worker’s version of the events causing the injury to their left upper thigh. The worker’s sister recalls that the worker had an injury on their leg that the worker said happened at work, but the sister was not a witness to the incident. The worker testified that the foreman who took them to hospital is deceased. There are no other witnesses available.

While it is not essential that there be corroborating evidence to support acceptance of a claim, and the panel does not find that the worker’s evidence is unreliable, here the 45 year delay in reporting makes it difficult for the panel to determine on the standard of a balance of probabilities that an accident occurred at work, arising out of and in the course of employment, causing an injury to the worker. Due to the length of that delay, there are no longer medical records or employer records available to review and consider, whether in support of the worker’s position or refuting it. Furthermore, the primary witness has passed away in the intervening years.

This is the very reason the Act requires that an application for compensation be filed with the WCB within one year after the date of the injury. The worker explained that they did not know they were required to report an injury within a specified period, but the panel noted that although the worker was youthful and inexperienced with the WCB in 1977, they have since then reported more than 20 claims to the WCB, the earliest of which was in 1985 and yet did not see fit to report this injury until late 2022. The panel noted that the Act also permits the enlargement of time for an application to be made, where in the opinion of the WCB, an injustice would result if it were not enlarged. While this provision could allow for the acceptance of the worker’s application, the panel does not find that any injustice would result if the time for application was not enlarged. The worker’s testimony is that they had no time loss arising from the injury and did not require any further medical treatment other than removal of the stitches. The passage of time between the injury and the claim also prejudices the employer, in that the employer is now unable to confirm whether an accident occurred as claimed.

Based on the evidence before the panel, and on the standard of a balance of probabilities, we are not able to determine that the worker sustained an injury as a result of an accident arising out of and in the course of their employment. Therefore, the worker’s claim is not acceptable, and the appeal is denied.

Panel Members

K. Dyck, Presiding Officer
J. Peterson, Commissioner
S. Briscoe, Commissioner
Recording Secretary, J. Lee

K. Dyck - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 15th day of March, 2024